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Dead Constitution See other Dead Constitution Articles Title: Invoking ‘Speech or Debate’ to Sidestep Subpoenas (CONGRESSCRITTERS DODGING SUBPOENAS) Invoking ‘Speech or Debate’ to Sidestep Subpoenas By Alan K. Ota, CQ Staff The Justice Department’s crackdown on congressional corruption is meeting a new form of resistance. Since federal prosecutors began pursuing lawmakers and aides tied to lobbyist Jack Abramoff, sent former Rep. Randy “Duke” Cunningham to jail for bribery and raided another lawmaker’s office, House officials have frequently invoked the Constitution’s “speech or debate” clause to refuse cooperation. The stack of subpoenas arriving from federal prosecutors is growing by the month, and in many cases the House is resisting rather than sending documents or providing witnesses. The issue has not become partisan. Many of those in constitutional standoffs with the Republican-controlled Justice Department are also Republicans, and it was a Republican Speaker who sounded the battle cry when the FBI raided a Democrat’s congressional office. Watchdog groups see more than dedication to constitutional principles at work. “Democrats and Republicans are both allowing members and aides to block investigations,” said Melanie Sloan, executive director of the Citizens for Responsibility and Ethics in Washington. The courts are attempting to clarify the speech-or-debate clause found in Article I and which actions of lawmakers are off-limits for official scrutiny from outside the legislative branch. With regard to members of Congress, the constitutional language says that “for any speech or debate in either House, they shall not be questioned in any other place.” The U.S. Court of Appeals for the District of Columbia ruled Aug. 3 that the FBI violated the speech-or-debate clause during last year’s raid on the Rayburn House Office Building quarters of Rep. William J. Jefferson, D-La., by seizing documents dealing with legislative matters. “Members of Congress and aides are taking the court ruling as a green light to disregard subpoenas in public corruption cases. They are turning their backs on the justice system,” said Craig Holman, a lobbyist for Public Citizen. In early October, an attorney representing lobbyist Brent R. Wilkes withdrew subpoenas issued to 12 House members who refused to comply with requests for testimony and documents. Wilkes is accused of bribing Cunningham, R-Calif. (1991-2005). More recently, Gregory M. Lankler, an Appropriations Committee staff assistant, served notice that he is resisting a subpoena and refusing to testify to a federal grand jury as part of a Justice Department probe of the relationship between former House Appropriations Chairman Jerry Lewis, R-Calif., and a lobbyist, former Rep. Bill Lowery, R-Calif. (1981-93). Rep. John T. Doolittle, R-Calif., has refused to comply with a subpoena to testify in a federal investigation of his ties to Abramoff. His refusal also closed the door on subpoenas issued to six of his aides, including chief of staff Ron Rogers and deputy chief of staff Dan Blankenburg. The formal notices of noncompliance read into the Congressional Record do not lay out legal arguments, and Lankler and Doolittle declined to comment. In another case, Rep. John P. Murtha, D-Pa., and the Justice Department agree that a defamation lawsuit against the congressman should be dismissed because Murtha is protected by the speech-or-debate clause. But a U.S. District Court judge rejected that argument and said Murtha must testify in the case in which he is accused of defaming a Marine during a news conference last year on the killings of Iraqi civilians. Pelosi Wants Ground Rules House aides say the fight over subpoenas has intensified because of an aggressive stance by federal prosecutors. In recent months, leaders of both parties have continued an effort begun by former Speaker J. Dennis Hastert, R-Ill., and departing House general counsel Geraldine R. Gennet to reassert constitutional protections for lawmakers and their aides. Speaker Nancy Pelosi, D-Calif., has urged the Justice Department to negotiate protocols for searches and requests for testimony and documents. She has named Irvin B. Nathan, a former principal associate deputy attorney general under President Bill Clinton, as a point person in such talks. Nathan will succeed Gennet as general counsel next month. “I’m all for supporting the speech-and-debate clause there,’’ Pelosi said. “That’s what we have to do. Otherwise, a hostile administration could bring charges against any member of Congress. Our founders were very wise to put that in.” Pelosi said she has encouraged lawmakers and aides not to abuse constitutional privileges. “We don’t want any member that’s under investigation to think that this is a harbor for them,’’ she said. But Joseph E. diGenova, a former U.S. attorney in Washington, said any agreement between the Justice Department and Congress is unlikely. “The DOJ jealously guards its prerogatives and would prefer to be told what to do by the court,” diGenova said. Getting testimony from Congress hasn’t always been a struggle. Nancy Lifset, a former legislative director to Cunningham, complied with a July 2005 subpoena to provide testimony in the Justice Department’s probe of ties between her boss and defense contractor Mitchell Wade. As the aide who handled Cunningham’s work on the Defense Appropriations Subcommittee, Lifset helped prosecutors tie favors Cunningham that received — including Wade’s purchase of the lawmaker’s house at a generous price — to items in spending bills. Lifset also testified against Wilkes earlier this month, identifying him as one of Cunningham’s top priorities when dealing with appropriations bills. Latitude for Lawmakers Before the Jefferson ruling, perhaps the most significant test of speech-or-debate had involved former Sen. Mike Gravel, D-Alaska (1969-81). Long before he emerged from political hibernation to launch a quixotic presidential bid this year, Gravel gained fame by reading aloud the Pentagon Papers during a subcommittee hearing. That triggered a legal battle over the extent to which the Constitution protects lawmakers and their aides from inquiries and prosecution based on legislative activity. The Supreme Court’s 1972 decision protected the committee actions of Gravel and an aide but not efforts to publish the Pentagon Papers privately. That ensured broad latitude for lawmakers and aides to conduct legislative business without fear of being prosecuted or being forced to testify in criminal or civil proceedings. “It safeguards the independence of the legislative members and their capacity to do their jobs without fear of intimidation by the executive,” said former House counsel Charles Tiefer, now a professor at the University of Baltimore law school. Prosecutors tend to view the court’s recent rulings as a protection of criminal activity by members of Congress. “Is it a hindrance to a prosecution? Yeah, it can be,” said Peter Zeidenberg, a former trial lawyer in the Justice Department’s Public Integrity section. Jonathan Allen contributed to this story.
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